Smt. Ram Sakhi Devi v. Chhatra Devi, (SC) BS100975
SUPREME COURT OF INDIA

Before:- Arijit Pasayat and S.H. Kapadia, JJ.

Civil Appeal No. 3608 of 2005 (Arising out of SLP(C) No. 4922/2003). D/d. 12.7.2005.

Smt. Ram Sakhi Devi - Appellant

Versus

Chhatra Devi and others - Respondents

For the Appellant :- D.K. Thakur and Debasis Misra, Advocates.

For the Respondents :- Krishna Prasad, Sanjay R. Hegde, S.K. Verma and N.S. Bisht, Advocates.

Civil Procedure Code, Section 100 - Substantial question of law - Second appeal decided by High Court without formulating substantial question of law - Order set aside - Matter remitted to the High Court for disposal in accordance with law - The mandate of Section 100(3) Civil Procedure Code is that memorandum of appeal shall precisely state substantial question or questions of law involved in the appeal - Where the High Court is satisfied that in any case any substantial question of law is involved it shall formulate that question under sub-section (4) and the second appeal has to be heard on the question so formulated as stated in sub-section (5) of Section 100.

[Para 3]

Cases Referred :-

Ishwar Dass Jain v. Sohan Lal, (2000(1) SCC 434) : 2000(1) RCR (Civil) 168 : 1999(2) RCR (Rent) 714.

Kanhaiyalal v. Anupkumar, (JT 2002(10) SC 98) : 2003(1) RCR (Civil) 293.

R. Lakshmi Narayan v. Santhi, (2001(4) SCC 688) : 2001(3) RCR (Civil) 192.

M.S.V. Raja v. Seeni Thevar, (2001(6) SCC 652) : 2001(4) RCR (Civil) 669.

R.V.E. Ventatachala Gounder v. Arulmigu Viswesaraswami and V.P. Temple, (2003(8) SCC 752) : 2003(4) RCR (Civil) 705 : 2003(2) RCR (Rent) 579.

Md. Mohammad Ali (dead) by Lrs. v. Jagadish Kalita, (2004(1) SCC 271).

Chadat Singh v. Bahadur Ram, (JT 2004(6) SC 296) : 2004(3) RCR (Civil) 781.

Kishori Lal v. Madan Gopal (d) by Lrs., JT 2004(8) SC 422.

Mathakala Krishnaiah v. V. Rajagopal, (2004(10) SCC 676) : 2005(2) RCR (Civil) 741 SC.

Roop Singh (Dead) through LRs. v. Ram Singh (Dead) through LRs. (2000(3) SCC 708) : 2000(2) RCR (Civil) 592 : 2000(1) RCR (Rent) 427 SC.

Thakur Kishan Singh v. Arvind Kumar, 1995(1) RRR 561 (SC) : (1994(6) SCC 591).

JUDGMENT

Arijit Pasayat, J. - Leave granted.

Appellant calls in question legality of the judgment rendered by a learned Single Judge of the Patna High Court in Second Appeal in terms of Section 100 of the Civil Procedure Code, 1908 (in short the 'Code'). The respondents are the legal heirs of the original plaintiff-Ishraj Narayan Singh. The original plaintiff filed a suit seeking declaration of his title over the suit land and declaration of want of title of Smt. Ram Sakhi Devi, the appellant herein, the defendant No. 3 in the suit. The trial Court had decreed the suit but in appeal the First Appellate Court reversed it. The respondents filed the second appeal before the Patna High Court. By the impugned judgment the High Court restored the judgment and decree of the trial Court and set aside the judgment and decree of the First Appellate Court.

2. Though many points were urged in support of the appeal, the pivotal plea was that the High Court could not have interfered with the judgment and decree of the First Appellate Court without framing a substantial question of law as enjoined by Section 100 of the Code. The High Court can only exercise its jurisdiction under Section 100 of the Code in Second Appeal on the basis of substantial question of law framed at the time of admitting appeal. A Second Appeal can be heard and decided only on the basis of substantial question of law, if any. The judgment rendered by the High Court in Second Appeal without following the aforesaid procedure is not sustainable in law.

3. Learned counsel for the respondents on the other hand submitted that the question of law is self evident and on a technical plea that a question of law has not been framed, the well reasoned judgment should not be set aside.

4. As mandated by sub-section (3) of Section 100 of the Code, the memorandum of appeal shall precisely state substantial question or questions of law involved in the appeal. Where the High Court is satisfied that in any case any substantial question of law is involved it shall formulate that question under sub-section (4) and the second appeal has to be heard on the question so formulated as stated in sub-section (5) of Section 100.

Section 100 of the Code deals with "Second Appeal". The provision reads as follows :

5. A perusal of the impugned judgment passed by the High Court does not show that any substantial question of law has been formulated or that the second appeal was heard on the question, if any, so formulated. That being so, the judgment cannot be maintained.

6. In Ishwar Dass Jain v. Sohan Lal, (2000(1) SCC 434) : 2000(1) RCR (Civil) 168 : 1999(2) RCR (Rent) 714, this Court in para 10, has stated thus :

7. Yet again in Roop Singh (Dead) through LRs. v. Ram Singh (Dead) through LRs. (2000(3) SCC 708) : 2000(2) RCR (Civil) 592 : 2000(1) RCR (Rent) 427 SC, this Court has expressed that the jurisdiction of a High Court is confined to appeals involving substantial question of law. Para 7 of the said judgment reads:

8. The position has been reiterated in Kanhaiyalal and others v. Anupkumar and others, (JT 2002(10) SC 98) : 2003(1) RCR (Civil) 293.

9. Reference may also be also be made to R. Lakshmi Narayan v. Santhi, (2001(4) SCC 688) : 2001(3) RCR (Civil) 192, M.S.V. Raja and another v. Seeni Thevar and others, (2001(6) SCC 652) : 2001(4) RCR (Civil) 669, R.V.E. Ventatachala Gounder v. Arulmigu Viswesaraswami and V.P. Temple and another, (2003(8) SCC 752) : 2003(4) RCR (Civil) 705 : 2003(2) RCR (Rent) 579, Md. Mohammad Ali (dead) by Lrs. v. Jagadish Kalita and others, (2004(1) SCC 271) and Chadat Singh v. Bahadur Ram and others, (JT 2004(6) SC 296) : 2004(3) RCR (Civil) 781 Kishori Lal and another v. Madan Gopal (d) by Lrs. and others, (JT 2004(8) SC 422) and Mathakala Krishnaiah v. V. Rajagopal, (2004(10) SCC 676) : 2005(2) RCR (Civil) 741 SC.

In the circumstances, the impugned judgment is set aside. We remit matter to the High Court for disposal in accordance with law. The appeal is disposed of in the aforesaid terms with no order as to costs.

Appeal allowed.